United States of America v. Ameren Missouri

Filing 75

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion to Consolidate [#67] is DENIED. Signed by Honorable Rodney W. Sippel on 2/15/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
AMEREN MISSOURI,
Defendant.

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Case No. 4:11 CV 77 RWS

MEMORANDUM AND ORDER
This matter is before me on Plaintiff United States of America’s Motion to Consolidate
[#67]. Plaintiff is acting on behalf of the United States Environmental Protection Agency
(“EPA”). The EPA requests that this case be consolidated with Ameren Missouri v. United
States Environmental Protection Agency, Case No. 4:11CV2051AGF, arguing the cases arise out
of the same set of operative facts and present common issues of fact and law.
On January 12, 2011, the EPA filed a lawsuit alleging Ameren Missouri committed
various violations of the Clean Air Act, Missouri State Implementation Plan, and Ameren’s Rush
Island Plant Title V Permit when it undertook various major modifications at Ameren’s Rush
Island Plant in Festus, Missouri (“CAA Case”).
On November 23, 2011, Ameren filed a lawsuit seeking compliance with the Freedom of
Information Act for the EPA to produce factual emissions data and related calculations
pertaining to allegations by the EPA in Notices of Violation it propounded on Ameren on
January 26, 2012, October 14, 2010, and May 27, 2010 (“FOIA Case”). In its Complaint,
Ameren argues it has a right to access the information requested through FOIA and seeks an
Order directing the EPA to release the documents withheld. This matter is currently pending

before United States District Judge Audrey G. Fleissig.
Rule 42(a) of the Federal Rules of Civil Procedure provide that a court may consolidate
actions involving common questions of law or fact.
The EPA argues the documents requested in the FOIA Case may also be discoverable in
the CAA Case. However, the questions of fact and law raised by the two cases are strikingly
different. The CAA Case raises the issue whether six construction projects Ameren undertook at
the Rush Island Plant violated the Clean Air Act. Conversely, the FOIA Case raises the issue
whether the EPA must produce requested records under FOIA regarding 28 projects at four
power plants. Further, the EPA has already filed a motion for summary judgment in the FOIA
case, arguing it is not required to disclose the requested information under two FOIA Exceptions.
As a result, I find that the cases sought to be consolidated do not involve common questions of
law or fact and I will deny Plaintiff’s motion to consolidate.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Consolidate [#67] is DENIED.

__________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 15th day of February, 2012.

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